1               Definitions and interpretation

1.1           In these Terms of Business:

1.1.1       These Terms of Business constitute an agreement between the BSG Utilities Limited whose company registration number is 13787104 and registered office address is Royal Quays Business Centre, Newcastle Upon Tyne, NE29 6DE, trading as BSG Utilities herein defined as the “Company”, and the party using the services of the Company herein defined as “Service User” for the Service User to use the services listed in Schedule 1 of the Company under these terms herein defined as the “Agreement”

1.1.2       a reference to this Agreement includes its schedules, appendices and annexes (if any);

1.1.3       a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.1.4       a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.1.5       a reference to a gender includes each other gender;

1.1.6       words in the singular include the plural and vice versa;

1.1.7       any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.1.8       the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and

1.1.9       Business Days shall be defined as meaning a day other than a Saturday, Sunday or bank or public holiday in England.

2               Term

This Agreement shall start on the earlier of: the date on which the Service User sign the Company’s Letter of Engagement &/or a Letter of Authority, or 14 days after this Agreement have been provided to the Service User herein defined as “Commencement Date”, and continue unless thisAgreement are terminated sooner in accordance with this Agreement.

3               Service User obligations

3.1           During the Term, the Company agrees to provide Standard Services, and the Service User agrees to purchase the Standard Services on the terms set out in this Agreement.

3.2           The Service User shall, at all times and in all respects:

3.2.1       perform its obligations in accordance with the terms of this Agreement;

3.2.2       comply with the Policies;

3.2.3       co-operate with the Company in all matters arising under this Agreement or otherwise relating to the performance of the Standard Services;

3.2.4       inform the Company in a timely manner of any matters which may affect the provision of the Standard Services;

3.2.5       obtain and maintain all necessary licences, permits and consents required to enable the Company to provide the Standard Services and otherwise comply with its obligations under this Agreement.

3.3           The Service User shall pay the sum of £1500 or the Default Fee as defined in clause 8.3, whichever is larger herein defined as the “Event Fee”, should a course of action by the Service User, which causes the Company to lose their expected, evidencable income from the use or intended use of their Service(s) and/or the Supplementary Services (s) once a Service(s) or Supplementary Services (s) has or have been agreed to be used or has been used. Including but not limited to, an unauthorised Change of Tenancy, duplicate contracts and supplying incorrect information here in defined as a “Breach Event” occur.

3.4           The Service User is required to notify the Company when contemplating a Change of Tenancy, at the supply address.

3.4.1       All documents relating the Change Of Tenancy must be supplied to the Company

3.4.2       The documents must be approved by a representative of the Company, failure to disclose, or ascertain approval shall constitute a Breach Event.

4               Exclusivity

4.1           The Company shall be the exclusive provider to the Service User, of the Standard Services.

4.1.1       The Service User shall not purchase Standard Services from another party, relating to the MPAN &/or MPRN number which the Company are provider Standard Services to, whether directly or indirectly, from any other person or business, during the Term.

4.2           Nothing in this Agreement shall restrict the Company from providing any Standard Services which are the same as or similar to the Service(s), to other Service User’s.

5               Obligations of the Company

5.1           Time of performance shall not be of the essence. The Company shall use its reasonable endeavours to perform the Service(s) in accordance with any commencement or end dates specified for performance.

5.2           The Company shall not be liable for any delay or failure in the performance of the Standard Services caused by:

5.2.1       the Service User’s failure to provide the Company with adequate instructions for the performance of the Service(s);

5.2.2       the Service User’s failure to provide the necessary documentation required to procure the Standard Services;

5.2.3       Force Majeure.

5.2.4       Events which the Company deems outside of their control

5.2.5       Utility Provider (as defined in Schedule 1) failure, error, negligence, default &/or decision in relation to the Service User &/or the Company.

5.3           The Company is under no obligation to compare all Utility Provider(s), and will only provide quotes they deem appropriate, and viable for their own business purposes.

6               Warranty

6.1           The Service User warrants that:

6.1.1       it has the right, power and authority to enter into this Agreement and grant to the Provider the rights (if any) contemplated in this Agreement; and

6.1.2       The necessary documentation required for the procurement of the Standard Services and all other information, documents, materials, data or other items provided by the Service User are legitimate, and do not infringe the intellectual property rights of any third party.

7               Payment

7.1           The Service User understands payment for Standard Services is severable from any third-party contract.

7.2           The Company may raise and issue their invoice for the Standard Services at any time.

7.2.1       The Service User may request an individual invoice for the Standard Services at any time during the Term, subject to clause 13.

7.3           The Service User shall pay all invoices:

7.3.1       in full in cleared funds within 7 days of the date of each invoice; and

7.3.2       to the bank account nominated by the Company.

7.4           Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:

7.4.1      The Company may, without limiting its other rights, charge interest & late payment fees in accordance with Late payment of Commercial Debts (Interest) Act 1998 & subsequent regulations on such sums; and

7.4.2       interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

8               Fees

8.1           The Fees for the Standard Services are the Commission included in any offer presented to the Service User as outlined in clause 9, and; The Fees for the Supplementary Services are the charges outlined in any proposal presented by the Company to the Service User.

8.2           All Fees are exclusive of value added tax, as defined by the Value Added Tax Act 1994 herein defined as “VAT”.

8.3           The Default Fee will be calculated in accordance with 8.4;

8.4           The number of days during the Term or proposed Term of Supply Contract, multiplied by Actual Daily Commission &/or the Estimated Daily Consumption, whichever is greater, multiplied by the Per Unit Commission included within the contractual unit rate of the Utility Provider Contract and; The number of days during the Term or proposed Term of Supply Contract, multiplied by the Per Day Commission included within the contractual standing charge of the Supply Contract.

9               Commission

9.1           By agreeing to use the Standard Services in accordance with Clause 10, the Service User agrees, and understands that the Company is entitled to receive a Fee for providing the any Standard Services in accordance with clause 8.

9.2       If the Service User accepts an offer made presented by the Company in accordance with clause 10 and does not sign the relevant Supply Contract, This will constitute a Breach Event and the Service User will be liable to pay the Default Fee as defined in Clause 8.3;

9.2.1       The charge for the Standard Services will be invoiced to Service User and will be payable with 14 days of the invoice date.

9.3           The Company will receive a Commission from the respective Utility Provider in relation to a Supply Contract agreed by the Service User if the Supply Contract is registered with the Utility Provider for the relevant Supply Contract on or around the agreed contract start date within the Supply Contract herein defined as “Go Live”.

9.4           If the Supply Contract does Go Live with the Utility Provider, and the Company receive, or are due to receive a Commission;

9.4.1       The charge for the Standard Services will be included within of the price contained within the Supply Contract proposed, prior to the Supply Contract being executed.

9.5          If the Supply Contract does not Go Live with the Utility Provider;

9.5.1       If the Supply Contract does not Go Live the Services User (this will constitute a Breach Event) will be liable to pay the Default Fee as defined in Clause 8.3.

9.6           Supplementary Services are not included within any offer of the Standard Services.

9.7           The maximum Commission the Company will charge is £0.03 per kWh of energy per unit consumed and/or £1 per day of the contractual term.

9.7.1       In line with TPI Code of Conduct, should you require specifics regarding the Commission value built into your proposal, or service contract, any request or notice, must be given in accordance with clause 13.

9.8           Commissions paid by the Utility Provider are exclusive of VAT.
9.9. The customer understands that the services provided by BSG Utilities and any associated parties are paid for via a fee directly to us or via an uplift on the unit rate, and if the fee is via an uplift, this will be collected via the customer’s supply invoice

10             Acceptance

10.1         On written and/or verbal acceptance of an offer made by the Company to the Service User, the Service User will become liable to the Company to pay the Fees as outlined in clause 8.

10.2         The Company does not guarantee that the offer will be accepted by the Utility Provider and the Company’s liability is limited as outlined in clause 11.

11             Limitation of liability

11.1         The Company is not liable for any losses incurred by the Service User in relation to this Agreement.

11.2          Nothing in this Agreement shall operate to exclude or limit either Party’s liability for: (1) death or personal injury caused by its negligence; (2) fraud; (3) wilful misconduct; and/or (4) any other liability which cannot be excluded or limited under applicable law.

11.3         Notwithstanding any other provision of this Agreement, the aggregate liability of either Party, its respective directors and employees, whether in contract, tort or otherwise, shall in no circumstances whatsoever (but to the extent allowed by law) exceed the Fees paid by the Service User to the Company. Neither Party shall be liable to the other Party or any third party for indirect or incidental losses and without limitation generally, to the foregoing, for any special consequential, exemplary or punitive damages, economic loss or failure to realise expected profits, savings or other benefits, regardless whether such damages where foreseeable and whether or not a party has been advised of the possibility of such damages

11.4         The Company is not responsible for anything they deem outside of their control

11.5         The Company shall not be liable for any of the following (whether direct or indirect):

11.5.1    loss of profit;

11.5.2    loss of or corruption to data;

11.5.3    loss of use;

11.5.4    loss of production;

11.5.5    loss of contract;

11.5.6    loss of opportunity;

11.5.7    loss of savings, discount or rebate (whether actual or anticipated);

11.5.8    harm to reputation or loss of goodwill.

11.6         Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:

11.6.1    death or personal injury caused by negligence;

11.6.2    fraud or fraudulent misrepresentation; or

11.6.3    any other losses which cannot be excluded or limited by applicable law.

12             Termination

12.1         This Agreement may be terminated at any time by the Company, giving not less than thirty days’ notice in writing to the Service User.

12.2         Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

12.2.1    the other party commits a material breach of this Agreement, and such breach is not remediable;

12.2.2    the other party commits a material breach of this Agreement which is not remedied within14 days of receiving written notice of such breach;

12.2.3    any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.

12.3         Without prejudice to any other rights that it may have, the Company may terminate this Agreement immediately on written notice to the Service User if the Service User has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid ten Business Days after the Service User has received a written notification from the Company that the payment is overdue.

12.4         Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

12.4.1    stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

12.4.2    is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or if the non-defaulting party reasonably believes that to be the case;

12.4.3    becomes the subject of a company voluntary arrangement under IA 1986;

12.4.4    becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

12.4.5    becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

12.4.6    becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

12.4.7    has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

12.4.8    has a resolution passed for its winding up;

12.4.9    has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

12.4.10  is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;

12.4.11  has a freezing order made against it;

12.4.12  is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

13             Confidential information

13.1         Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity herein defined as “Affiliates”, including any details of its business, affairs, customers, clients, suppliers, plans or strategy ‘Confidential Information’ confidential and that it shall not use or disclose the other party’s Confidential Information to any person.

13.2         Each party recognises that any breach or threatened breach of this clause may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

14             Entire agreement

14.1         This Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

14.2         Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

14.3         Nothing in this Agreement purports to limit or exclude any liability for fraud.

15             Notices

15.1         Any notice or other communication given by a party under this Agreement shall be:

15.1.1    in writing and in English;

15.1.2    signed by, or on behalf of, the party giving it;

15.1.3    sent to the relevant party at the address.

15.2         Notices may be given, and are deemed received:

15.2.1    by hand: on receipt of a signature at the time of delivery;

15.2.2    by email: when sent from the registered email address

15.2.3    the service user accepts that all calls within the Company are recorded for training, monitoring and verification purposes.

16             Force majeure

16.1         In this clause, Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement Inability to pay is not Force Majeure.

16.2         A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:

16.2.1    promptly notifies the other of the Force Majeure event and its expected duration; and

16.2.2    uses reasonable endeavours to minimise the effects of that event.

17             Further assurance

Each party shall at the request of the other party, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.

18             Variation

This Agreement may be varied from time to time by the Company by informing the Service User in writing of any variation 30 days before the variation takes effect. Any variation will be deemed to have been accepted, variations will not and cannot be applied retrospectively.

19             Assignment and sub-contracting

19.1         The Company may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice to the Service User.

19.2         The Service User shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without the Company’s prior written consent.

20             Set off

The Service User shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

21             No partnership or agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

22             Severance

22.1         If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

22.2         If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

23             Compliance with law

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 22 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).

24             Third party rights

24.1         A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.

24.2         The Affiliates of the Company shall have the right to enforce the provisions of this Agreement.

25             Governing law

This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

26             Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation

Schedule 1 – Standard Services

Standard Services are:

Supply Contract Offer(s) Procurement – the act of obtaining offers from Utility Provider’s & presenting offers to the Service User for acceptance in accordance with Clause 10 of the Agreement.

Supply Contract Inception – the preparation, presentation, and submission of supply contract(s) between the Utility Provider of electricity/gas/water as the case may be herein defined as the “Utility Provider” and the Service User.

Schedule 2 -Supplementary Services

Services relating to commercial Electricity, Gas and Water Supply (excluding supply).

These Supplementary Services are provided on an hourly rate basis at the Prevailing Hourly Rate as defined in the BSG Utilities Hourly Rate Card, unless agreed otherwise in writing by a Director or Manager of the Company.

The BSG Utilities Hourly Rate Card can be found here.